Goldberg Classical Nat Right

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A Symposium on Natural Right and Natural Law*

Classical Natural RightJ oseph E. Goldberg

ALTHOUGHHE Equal Rights Amendmentfailed to obtain the requisite number ofstate ratifications for adoption to the Con-stitution, the fundamental issue posed bythe amendment will continue to bedebated. Stated simply, the issue concernswhat considerations should sexual dif-ferences now be accorded in political life?Does the fact that aperson is aman or awoman determine what he or she can do,and thus allow a political community tostate what they may do? What is by naturethe political significance of the two sexes?A denial that differences exist betweenthe sexes contradicts the most obviousfacts of life, but what is to be madepolitically of these obvious facts is farmore controversial.To pose the question of the Equal RightsAmendment in the above manner returnsus to the classical question of what is bynature right or just, l e . , the quest for whatis right independent of its enactment intolaw by apolitical community. The naturalright teaching of classical politicalphilosophy assumes that there is aknowable standard independent of con-

The four papers that follow were delivered at ameeting o f the Middle Atlantic States PoliticalScience Association held in Washington, D. C.,J anuary 1982. The symposium was chaired byProfessor George W. Carey, Department ofGovernment, Georgetown University, and was en-titled Natural Law and Natural Right.

ventional justice which can be used tomeasure and guide political life. Thesearch for natural justice and rightemerged with political philosophy, and isassociated initially with Socrates, Plato,and Aristotle.A l though the classical politicalphilosophers taught that not all men hadthe natural equipment to becomephilosophers, they also taught that theunderstanding obtained throughphilosophical inquiry was indispensablefor leading the highest life. Implicit in thisstatement is the denial that all pursuitsoman are equal and that only knowledge ofthe natural hierarchy of desires or wantscan provide proper guidance for man.This is, of course, knowledge of what isnaturally right for man. In antiquity aswell asin contemporary life,the argumenthas been advanced that the good is thepleasant. The good life is a lifededicatedto the pursuit of pleasures. Pleasure isgood and pain is harmful. Y et, is it notpossible to recognize that certainpleasures are harmful to man while theexperience of certain pains is beneficial?Consumption of alcohol and the use ofdrugs provide momentary pleasure butultimate harm, while surgical proceduresprovide momentary pain but ultimategood for the patient. Clearly, one musthave knowledge of what pleasures aregood and what are bad. This returns the

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thoughtful man to the question of naturalright.The intention of the following discussionis to provide an introduction to theclassical natural right tradition.* Thattradition has become obfuscated to themodern student of politics in part becausethe assumptions of classical politicalphilosophy were challenged by themodern political philosophers of the six-teenth and seventeenth centuries, and inpart because the rise of modern socialscience, a movement prepared by bothmodern political philosophy and modernnatural science, called into question thepossibility of achieving the objectives ofthe ancients. The enterprise of politicalphilosophy is held to be either unscientificin that it does not conform to the re-quirements of avalue-free social science(the contention of positivism) or obliviousof the historical character of humanphenomena (the contention ofhistoricism). In the latter criticism objec-tive truth is said not to exist because alltruth is relative to itsparticular setting ortime. Both modern positivism andhistoricism have denied the possibility ofpolitical philosophy and the existence ofnatural right.3The recovery of the classical naturalright teachings has also been impeded bythe modern natural rights doctrine. Themodern doctrine is associated primarilywith the political philosophy of ThomasHobbes and John Locke. These rights aresaid to be possessed by all men at birthand are derived from the one originalright of self-pre~ervation.~atural rights,according to the modern understanding,do not owe their existence to human ac-tion, but governmentsarecreated, in fact,to secure them for all men. For thisreason, the natural rights doctrine em-phasizes the rights of men and not theirduties or responsibilities.This essay will examine the classicalunderstanding of nature and the way inwhich the appeal to nature provided thestandard by which to measure and guide

, political life. The discussion will primarilyemphasize the political philosophy of

Plato and Aristotle. Because this essay isintended as an introduction, references toselected scholarly literature will be provid-ed in the notes for those who wish to ex-plore the numerous questions raised byclassical political philosophy and the no-tion of classical natural right.I

POLITICAL LIFE EXI STED prior to theemergence of political philosophy and thediscovery of natural right. For naturalright to be discovered, the idea of naturefirst had to exist. Nature was not knownand could not serve as the justification of aparticular way of living for pre-philosophical man, who understood thingsin terms of custom or way. Theheterogeneity which characterizespolitical phenomena, the variety of lawsand the diversity of practices which arereflected in political life, was understoodas a reflection on the numerous customsor ways distinct to a particular people. Sotoo were other nonpolitical phenomenaunderstood as reflecting the customs orways particular to different things. Dogsand cats, men and women, Jews andAmalekites manifested ways particular tothemselve~.~The diversity of the ways or customs ofpeople required ultimately a justificationas to why ones own way was superior toother ways. T he pre-philosophicaljustification rested on ancestral authority.The origin of ones customs is associatedwith the founders of the ancestral line,and the account of the beginnings of apeople known through an oral and/orwritten inheritance established the ab-solute superiority of the founders overother humans. They are identified withthe gods, and in turn the way of lifeestablished by the fathers is identified as adivine way. Pre-philosophical society iden-tified their legal codes as divine in origin,and their justification was rooted in divineauthority.Since the origin of the divine codes wasnot known directly by the existing genera-tion, the authenticity of the account rested

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on hearsay. As different people exhibiteddifferent customs and provided distinct ac-counts to justify the rightness of theirways, sowas there a heterogeneity of ac-counts of beginnings: the beginnings of aparticular people, the beginnings of man,and the beginning of the world. Clearlythere were observable differences in theseaccounts of the first things; and, as statedabove, the claim of the rightness of oneover the other rested on the authority ofthe community. Unless that authority waschallenged or doubted, there could notemerge a quest to discover the true ac-count. The authoritative nature of pre-philosophic society precluded theemergence of philosophy. For philosophyto arise and nature to be discovered,authority had to be challenged. Theemergence of the idea of natural rightpresupposes, therefore, the doubt ofauthority.6The rejection of the pre-philosophicalaccounts constituted a rejection of hear-say. Hearsay was replaced by a desire toknow things either through observationand/or human reason. Relying uponhuman observation, the totality of observ-able phenomena leant itself into a divisionbetween those things that are of humanorigin and those things of nonhumanorigin. We recognize that man is not thecreator of all things. Those things whichowe their existence to human agency areartificial. They come into being as a conse-quence of human intention and they couldbe otherwise if their human creator soconceived. A rtificial things are as they arebecause of human intention. Since theorigin of artificial things can be traced tohuman origin, it is clear that those thingswhich come into being through humancontrivance cannot be the first things.In contrast to the artificial is the natural.Nature is taken to mean many things,but primarily it means the things, or theprinciple of the things, that do not owetheir being to human agen~y.~nlike ar-tifacts which owe their being to humanagency, natural things have no apparentforce or agency visible as their cause. Sothat when we describe something as

natural, we mean T here is onlynecessity-which, as the alternative to in-telligence, isnot an explanation but a con-cession that we find the naturalphenomena in principle unintelligible.*The attempt to understand the principlesof all things and thus acquire knowledgeof the beginnings of these naturalphenomena is the philosophical enter-prise. Philosophy assumes not only the ex-istence of first things, but that the firstthings may possibly be known throughhuman reason.The discovery of nature introduced adistinction between things that werenatural (physis) and things that were con-ventional norn no ).^ A new question con-cerning political phenomena could now beintroduced: Is political life and its stand-ards of right and wrong, natural or con-ventional? The preSocratics believed thatpolitical lifebelonged to the realm of theconventional. Political right owed itsorigin to human agency through humanagreement. Since different societies ad-vocated different notions of justice andjustice within a society was identified withthe laws, agreed upon by men, observa-tion of political life provided strong sup-port to the conventionalist position.

I IClCERO IDENTIFIES SOCRATESas the founderof political philosophy.lO According to thistradition, Socrates called philosophy downfrom the heavens. In particular, Socratesissaid to have examined human things byinquiring into their distinctive character.According to Xenophon, Socrates wouldhold discourse, from time to time, on whatconcerned mankind, considering whatwas pious, what impious, what wasbecoming, what unbecoming; what wasjust, what unjust. . . I 1 The recognition ofhuman things, however, is dependentupon the recognition o nonhuman thingswhether they are of natural or divineorigin. To begin with the examination ofhuman things, as Socrates did, requiredsome understanding o the totality ofthings or some understanding o the

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whole of which the human things are apart.Man finds himself beneath the heavensand above the earth. This condition is per-manent and is fundamentally an enigma.Furthermore, since man as a corporealand thinking being is of nature in the sameway that a tree, or a dog, or a planet is ofnature, the condition of man is derivativefrom the whole as are all natural things.But our knowledge of this derivation aswell as the exact character of the wholeitself is o a different order from thatknowledge which we possess of humanthings. We are limited to the examinationof the whole that isvisible to us, and weare required by necessity to discover thetrue whole aware that we are restricted inits examination. This awareness that wepursue the truth about the whole withoutever having seen the visible whole in itsentirety is what Socrates calledknowledge of ignorance.12 We knowthat which we do not know.The whole for Plato consists of partswhich are heterogeneous. Its heterogenei-ty fundamentally isnot rooted in the sensi-ble qualitiesof the parts, but rather the dif-ferences are to be understood in terms ofthe eidos, the form or shape of a thing.Things, whether man or a beast, areobserved, but it is not the observation ofthe sensible qualities which providesknowledge of the essential forms of theparts. Theeidos is grasped noetically, i.e.,theeidos is apprehended by the intel1e~t.l~For this reason, the Platonic Socratesbegins his examination of the nature ofthings not with the observation of theirsensible qualities but with opinions abouttheir natures. The examination of clashingspeeches about things, dialectics, is themeans of transcending opinion and replac-ing it with knowledge. To be certain, thereis no assurance that such inquiry will ob-tain the truth or knowledge of things.Despite the fact that human things can-not be fully understood withoutunderstanding their relationship tononhuman things, man does live within aparticular accessible whole. It is the wholebetween the earth and the heavens; and

though it ultimately is part of the entiretyof things, the human things can beunderstood in terms of mans eidos.Thus,Socrates examined human things with thisawareness of the human situation.Political philosophy also begins with anexamination -of opinions about what isright or just for man.14 The classicalpolitical philosophers were as aware asthe pre-Socratics that different politicalcommunities held vastly different opinionsabout the nature of man and what ispro-per for a good life. Unlike the conven-tionalists who appeared to identify thegood with the pleasant,15 the Socraticsbelieved that the good is more fundamen-tal than the pleasant and that knowledgeof the good provides guidance as towhether or not certain pleasures shouldbe satisfied. Guidance can only be provid-ed, of course, if one knows what is andwhat is not good for man. This knowledge,in turn, is dependent upon knowledge ofmans eidos. Only if one pursuesknowledge of the nature of man can oneknow whether or not something is in ac-cord with that nature or violates thatnature. Stated simply, only if we possessknowledge of what is by nature right forman can we determine whether awant ora desire should be satisfied. Classicalnatural right teaching therefore perceivesa natural hierarchy of human objectives.For classical political philosophy, Thegood lifeis the perfection of mans nature.It is the lifeaccording to nature.16 Manssoul must be properly ordered in order toachieve its excellence.

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CLASSICAL POLITICAL PHILOSOPHY believedthat the perfection of man could rarely oc-cur in isolation from other men. Politicallife is required for the pursuit of humanexcellence. As Aristotle observed: Theman who is isolated-who is unable toshare because he is already self-sufficient-is no part of the polis, and musttherefore be either a beast or a god(Politics1253a). A few lines later Aristotleadds, Man, when perfected, is the best of

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soundness: Aristotle observes in thePol i ti cs that it is clear that the laws inconformity with the correct constitutionsmust necessarily be just and those in con-formity with the divergent forms of con-stitution unjust (1282b6). The question ofthe rightness of the laws cannot beseparated from the question of therightness of the regimes, and, therefore,Aristotles inquiry returns to the discoveryof what is by nature the proper regime forman. For Artistotle as well as Plato thelegal does not constitute the fundamentalpolitical expression.

IVPOLITICAL LIFE for the ancients wasunderstood to exist not for the sake of

IHarry V. Jaffa, A ristotle, in History of PoliticalPhilosophy, 2nd ed., ed. Leo Strauss and JosephCropsey (Chicago, 111.. 1972), p. 75. 2The modern at-tempt to recover an understanding of the classicalnatural right tradition owes its greatest debt to thescholarship o Leo Strauss. This introduction toclassical natural right has benefited greatly from hiswork. A lthough the subject of natural right is treatedin many o his works, his major treatment of itsorigins, formulation by the ancients, and critique bymodern political philosophers is to be found inNatural Right and History (Chicago, I l l . , 1953). Arecently published article, Richard K ennington.Strausss Natural Right and History, Review ofMetaphysics, 35 (September 1981). 57-86, stands asone of the most important and helpful works inunderstanding the structure o Natural Right andHistory as well as continuing the recovery of thetradition. SeealsoStrausss writings: Natural Law,International Encyclopedia of the Social Sciences,Vol. 11 (New Y ork, 1968), 80-85. 3See Strauss,Natural Right and History, pp. 1-80;K ennington, pp.63-70; and Leo Strauss, What Is PoliticalPhilosophy? in What Is Political Philosophy? and

mere life, but was directed toward humanperfection or virtue. For man this meansthat the good life is that which fulfillsmans natural inclinations in their properorder to the highest degree possible. Asdiscussed in earlier sections of this article,the perfection of mans nature, accordingto classical political philosophy, requiredthat men live together within political life.Since men differ in their understanding ofwhat is human perfection, the objectivesor ends of political lifewhich reflect theirunderstanding will also differ. These dif-ferences constitute the fundamental prob-lem for political life since they inviteserious men to reflect upon the nature ofthe good. The pursuit of natural right andthe importance of political philosophy forstatemanship arises from reflection uponthe human situation as we confront it.

Other Studies (New York, 1959), pp. 18-27. For adiscussion of modern natural rights see Harry V. Jaf-fa, Natural Rights, International Encyclopedia ofthe Social Sciences, vol. 11 (New Y ork, 1968), 85-89;Strauss, Natural Right and History, pp. 165-323; andK ennington, pp. 80-86. SStrauss,Natural Right andHistory, pp. 82 ff.; and K ennington, pp. 71-72.6Strauss,Natural Right and History, p. 84. 7JosephCropsey, Political Lifeand a Natural Order, J our-nal o f Politics, 23 (February 1961), 47. Vbid., p. 48.gStrauss,Natural Right and History, p. 90; and Ken-nington, pp. 73-74. 10Cicero,Tusculan Disputationsv. 10; See LeoStrauss, The City and Man (Chicago,I l l . , 1964). p. 13. IlX enophon, Memorabilia 1.1.16;and Strauss, Natural Right and History3p. 13. 1ZPlat0,Gorgias 509a; See also K ennington, pp. 75-76; andJ acob Klein, flatos Trilogy (Chicago, Ill., and Lon-don, 1977), pp. 137 f f. I3Strauss,Natural Right andHistory, p. 123. Ibid., p. 124. 151bid.,p. 126. Vbid.,p. 127. 17Aristotle,Nicomachean Ethics 1134b20 ff.;and see Strauss, Natural Law, p. 81; and Harry V.Jaffa, Thomism and Aristotelianism (Chicago, I l l . ,1952). pp. 30 ff . *Aristotle, Politics 128a4-15,1288a15-29.

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